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Fighting Roe: Whence, what, whither?

This slightly hysterical article in Slate alleges that Roe v. Wade is no longer in practice "the law of the land" because of various pro-life pieces of legislation that have been (or even just might be) successful at the state level.

Well, would that it were so. But let's not get too excited too fast. After all, our pro-death opponents are not satisfied unless every woman everywhere has easy access to an abortion for whatever reason, and they'll howl that we're abrogating women's "constitutional rights" if we rein in a quodlibetal abortion license.

Several of the items Slate brings up, though examples of good legislation which will, God willing, save lives, are not direct challenges to Roe and its infamous companion, Doe v. Bolton. These include waiting periods and informed consent laws, some apparently even requiring women to be offered an opportunity to view an ultrasound of the unborn child. (Slate makes it sound like the woman must actually be shown the ultrasound, which appears to be incorrect. This summary by Guttmacher just describes offering the woman the opportunity to view an ultrasound.)

However, the prohibitions on abortion after fetal pain (which the statutes list as twenty weeks) are more plausibly challenges to Doe. This is because, at least if they are all like Idaho's, they apparently contain only a very narrow health exception which could not plausibly be applied to "mental health" or financial situation. Slate frets about the failure to file suit against such bills, but in August, a couple of months after the Slate article came out, such a suit was indeed filed, apparently focusing on the absence of the desired sweeping health exception. I don't have an update on the status of that suit; if a reader does, please post that in comments.

Rolling back the sweeping health exception in Doe and introducing meaningful protection for unborn children after twenty weeks would be a wonderful gain, if such laws are enforced. The laws do contain an "emergency medical condition" exception which I have no doubt will function as a health exception in a number of cases, but if the law is enforced, these cases will be limited in number. Dr. Tiller operated with impunity in Kansas (which, as I recall, allegedly limited late-term abortions to those where there was a genuine danger to a woman's physical health), but my perception is that he did this by getting another doctor to rubber-stamp frivolous health exception claims, for which he could have been prosecuted had there been the prosecutorial will to do so in his local venue. So these bills will help only if a) there is such prosecutorial will and b) they are not struck down for not containing a broader health exception.

It would be interesting to know how such bills actually affect would-be abortionists in the states, especially those would-be abortionists who want to be perceived as respectable. Do they take the bills at face value and not perform abortions after the stated number of weeks unless there is some serious health problem with the mother? Or do they shrug and decide that the Supreme Court will get them out of quod if they skirt the law and abort for psychological reasons, reasons of fetal anomaly, and the like? I'd be especially interested to know whether Down Syndrome children are still being aborted in Nebraska, Idaho, and other states that pass such laws.

I'm not going to do the "bitter purist" routine and dismiss all regulations within or even pushing the envelope of Doe and Roe as mere fiddling while Rome burns. These are real gains. Even waiting periods may well save some babies, and informed consent, if carried out rather than flouted, will save many more. (One does have to wonder: How would an abortionist be likely to "offer a woman the opportunity" to see an ultrasound of her unborn child? Would printing the statement, "You have a right to view the ultrasound that is performed on you" in small print as part of a sheaf of papers do it? How about muttering, "You don't want to see this, do you?" while performing the ultrasound?)

Roe must be meaningfully, fully overturned, or babies, especially early in pregnancy, will still be slaughtered in numbers and for any reason, and the states will not be able to stop this.

Until a state can actually arrest and prosecute an abortionist simply for aborting a child at twelve weeks, then yes, in practice, Roe remains "in force."

What will happen? I don't know, though I'm inclined to be somewhat pessimistic. I do know that the fight to get the chance to protect the unborn, even at the state level, will not be over until it's over.

P.S. Let's not forget defunding Planned Parenthood at the federal level. Defunding legislation is always meaningful legislation. Money talks. The next time someone tells you that, because the courts have spoken, the legislatures can do nothing and (usually this is the conclusion) we needn't bother our heads about whether a politician is pro-life, think about all the money PP gets every year.

Comments (10)

But my read of the article was that it didn't imply that Roe was not "in force" really. I thought the main point of the article was that state laws were being passed that violated Roe, and that this situation is no longer challenged by the pro-aborts as it once was. If that is true, though depending on the reason, the result could reasonably be one where the Roe law is further undermined and not enforced. The author says "It hardly bears observing here that most of these measures are against the law. That law is Roe v. Wade."

You'll get no argument from me that the law itself is a grievious injustice, but I think the author is arguing that the practical results are increasingly differing from what the law intended and what that will lead to. You seem to be arguing from more of a perspective that makes assumptions about what people will do if something is allowed in theory, when this says nothing about the perceived benefit or consequence in fact, which has a great deal to do with how much something happens. The fact that one can get a building permit to do something last decade and this one tells us nothing about how hard it is to get one merely because of bureacratic intransigence for example, to say nothing of the perceived likelihood of enforcement, matters of critical importance when it comes to what one does and how often, as opposed to what one could do or would do with more time, patience, and determination than most people have. Abortion industry thrives on profits, and though some do it for the sheer ideological motive I think at least a great many do not as with any other movement.

In other words, we could shift this debate to empirical grounds. What are people doing, and is it more or less than in the past and why? How likely is a person to open an abortion clinic, etc. Behavior doesn't always conform to law, and I think that was the main point of the article. I may be wrong, but that's was my impression when I first read it.

We've got lawyers working the pro-life cause, and we have folks doing due diligence to make sure that abortion providers aren't violating current health and other laws (hint: they are with impunity) and prosecuting them for that while praying for the lawyers. Good for them. They got Capone on tax evasion. I think the latter bunch is having more success on stigmatizing the practice than most think. The author may be right to see the threat, and I think the direct (against Roe) and indirect (any other law-breaking) legal or regulatory methods are self-reinforcing. I'm not sure she's as hysterical as you may think, but I understand your suspician because hysterical claims about Roe is the norm by these types. But I can't help but wonder if her fear isn't justified forty years after Roe. I probably won't have time to follow up, but those are my thoughts on the intent of the article.

To put it more clearly, it isn't as though citing Roe to a police office or judge gets you lawyered-up, funded to defend yourself, and your lost income from your abortion business compensated for automatically. Eventually you might win, but that doesn't help you in any sort of near term if you are cited or arrested. You have to wait on the bureacratic machinery to have any hope of that if a judge does not recognize that Roe is supposed to trump whatever you are accused in lower courts of. This undermining of the enforcement of Roe would bring on this worry without repeal, and would eventually hasten repeal. That is the logic. I don't think we can work backward from skepticism that repeal of Roe will happen anytime soon to the idea that there isn't an inescapable logic that must work itself out in public life without falling into a secular Calvinist idea.

Look, there were ardent Southern pro-slavery folks in the South before the CW that argued that unless they could defeat certain ideas that slavery was doomed. This when Dred Scott was the unshakeable law of the land, and they agreed with it. They didn't know when, but they knew how they're position would be undermined and what would follow from that. This is a faith in human rationality, limited though it is, and depraved as many humans can be. Lose the argument and lose the war. They were right. This is the classical understanding of human rationality. People can resort to great depravity, but people cannot knowingly violate their consciences forever without going insane.

But you're not doing that I know Lydia, but others will no doubt jump in and tell me that I'm expressing the liberal idea that "people are basically good" and since they aren't (they're born sinful) so there can be no faith in rationality, so I'm just anticipating what's coming.

But you're not doing that I know Lydia, but others will no doubt jump in and tell me that I'm expressing the liberal idea that "people are basically good" and since they aren't (they're born sinful) so there can be no faith in rationality, so I'm just anticipating what's coming.

People have to be able to live with themselves. A man who can murder 100 men may not regret those acts, but couldn't live with the idea of murdering a child who in his mind didn't deserve it.

To put it more clearly, it isn't as though citing Roe to a police office or judge gets you lawyered-up, funded to defend yourself, and your lost income from your abortion business compensated for automatically. Eventually you might win, but that doesn't help you in any sort of near term if you are cited or arrested.

I think this is an important point, Mark. I have come to realize, though ideally it shouldn't be this way, that a lot of law as practiced is bluff. Sometimes people don't even know that they are bluffing. Bluff can take many forms--for example, it can take the form of police bullying as in the case of the Christian missionaries in Dearborn. Just recently four police officers were _arrested_ by the FBI for allegedly violating the "civil rights" of illegal Hispanics in Connecticut. If legal standards of constitutional interpretation and enforcement were applied uniformly, the police in Dearborn who bullied the Christians at the behest of the Muslims would have been arrested by the FBI on exactly the same grounds. Or so it seems to me. But they bluffed because they assumed they could get away with using a vague "disorderly conduct" charge to harass the Christians and make sure they never came back. To some extent, they succeeded. The police didn't get in trouble. The missionaries' attempt to evangelize Muslims was disrupted for that year. The only thing that preempted it for future years was a court order about a different case involving different missionaries which appears to have broken down the perception that the police can stop Christian missionaries.

What all this has to do with Roe is that a lot does hinge on perception, and especially perception at the local enforcement and prosecution level. What seems to matter is whether the local police, prosecutors, and judges _believe_ that abortions after a certain number of weeks are illegal and whether they prosecute abortionists for them. If they believe this and do prosecute, it may well be unprofitable for abortionists to operate in those places, and the abortionists may also believe that abortions after that many weeks are illegal and may stop performing them. All this even if some federal judge *could* in principle rule that the law is "unconstitutional" on the basis of Doe's broad health exception requirement.

What does surprise me is that the well-funded pro-abort left doesn't craft better and more direct test-case challenges to these laws. It should be simple enough to find some woman to claim that she needs an abortion for "psychological health" reasons (maybe throw in a baby with a genetic anomaly whose continued existence is causing her horrible psychological pain), to get a doctor to certify this and to perform an abortion, to get him arrested, and then to challenge the law's constitutionality in federal court. Or it might even be easier. I believe they can bring suit even if they just claim they are afraid of an arrest under the law, so the woman can't get her abortion, etc. If the federal court rules that the self-evidently phony psychological health claim must trump the state law, the law becomes moot, and that all-important perception by local law enforcement that they can stop late-term abortions will be undermined. They don't seem to have gone this exact route. Instead the suit in Idaho seems to involve some woman who lives in a somewhat remote location who wanted to self-medicate to induce an abortion. I'm not even sure exactly how the absence of a broader health exception comes into play.

All good points Lydia. As far as the ease of getting a doctor to certify a condition and to perform an abortion, it would be easy if the same doctors and organizations that performed other surgical operations also did abortions because they are reputable and do follow the laws. I think many pro-aborts realize that if abortion is stigmatized and doctors don't wish to do it whatever their personal or political views, then the practice will be slowly strangled as the abortion mills tend to be one step ahead of the law and do things by stealth, and are being closed down at a high rate in fact. In 1990 there were 2,200 of them and now something like 700. So if they can win the battle to make performing abortions a part of medical school training and therefore legitimize it that will be a large part of the battle, and if they don't it will be a bad omen for the pro-abortion camp.

The one thing I don't understand that I wish I did was abortion drugs. I don't even know how effective they are, but depending on that I suppose it could have a dramatic effect, and trump much of the progress the pro-life camp has made in the last decade if they are accepted.

I assume you're thinking of the RU-486 pills? They can be used effectively and safely only very early. In fact, I think the woman in the Idaho lawsuit is suing to be allowed to use these drugs late in pregnancy. Quite dangerous, I believe. An off-label use at best, and I don't think any reputable doctor would prescribe it for a woman that late in the pregnancy. Planned Parenthood itself recommends it only up to 9 weeks of pregnancy.

Most of the gains that pro-lifers have made are for pregnancies later than that in any event.

Speaking of RU486, the federal government's suggestion to make them available without prescription to minors is amusing to me because it's just another example of how we've cheerfully thrown the rule of law out the window. Since a 11 year old cannot legally be impregnated except in the most bizarre of bizarre situations (she's actually lawfully married which would probably get CPS on her parents for even agreeing to let her get married), giving her RU486 should technically be Obstruction of Justice because it is the destruction of evidence of a felony.

Yeah, that's a FANTASTIC idea. A kid at school cannot carry an aspirin in his pocket to take at lunch, and if he is found with it he can be suspended for a week, (if not expelled), because DRUGS MUST BE ADMINISTERED UNDER SUPERVISION !!!!!!

But if a kid age 12 wants to have an abortion without having anyone know about, that's OK even though RU-486 has about 60,000 times the likelihood of bad side effects.

Gee, I wonder where that 'thinking' comes from, if that's what you want to call it. Maybe, gonadocentrism?

Mike T, I think you may be confusing RU-486 and Plan B. It's the latter they want to have available to minors without prescription. The former _probably_ would fall under parental consent or parental notice laws in states that have such laws. In states that don't have such laws, a minor could probably get it without parents knowing, like a surgical abortion, but not from a store.

I didn't discuss Plan B in my above comment. Plan B works either by delaying ovulation (but it's such a wacking dose that the young woman can get side effects like nausea) or possibly, depending on when it's taken, by preventing implantation. From what I recall of the statistics, it's not terribly effective either way, where "effective" is related to how many women turn up detectibly pregnant after taking it. It has to be taken even earlier than RU-486. Most pro-life gains have been against surgical abortion, hence, by definition, abortions at least _somewhat_ later, and as the main post shows, usually quite a bit later in the pregnancy.

"Plaintiff, however, does not have standing to challenge the Pain-Capable Unborn Child Protection Act. As noted above, Plaintiff does not allege that she was pregnant at the time she filed this action. Nor does Plaintiff allege that her past conduct in purchasing medication to induce an abortion would fall within the proscription of the Act, exposing her to a real threat of prosecution. Finally, Plaintiff's testimony that she would seek an abortion if she were to become pregnant in the future does not suffice to give her standing. Roe v. Wade, 410 U.S. 113, 127 (1973)."

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